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Papua New Guinea Local Land Court |
PAPUA NEW GUINEA
IN THE LOCAL LAND COURT OF JUSTICE
LLCr 04 of 2006
BETWEEN
NISSAL CLAN
AND
UNAWOS CLAN
Lihir: S.Lavutul
Mediators: H.Amu, T Zakok
2006: 09th, 26th May, 04th July
THE LAND DISPUTE SETTLEMENT ACT – Section 68 Customary Ownership of Land. Lihir as a matrilineal society in respect to Land.
Cases Cited
Nil
References
Land Dispute Settlement Act, s 68
Local customs and practices of the Lihir people
Representation
Ambrose Silul – Spokesman Unawos Clan
Simon Kombing – Spokesman Nissal Clan
DECLARATION OF OWNERSHIP AS TO CUSTOMARY LAND
11 April 2008
The Local Land Court, This matter came before us after all attempts at mediation failed to amicably settle the dispute as to customary ownership to the said Leputumlik land situated along the Airport- Kunaye road, Lihir Island, Namatanai District, New Ireland Province. The current dispute is between the Nissal Clan and Unawos Clan of Kunaye.
ISSUE:
2. Whether either party has standing by custom to claim customary ownership of the said Leputumlik Land.
LAW
3. Section 68 of the Land Dispute Settlement Act - Determination of Custom.
(1) Subject to this section, in all matters before a Provincial Land Court or a Local Land Court shall determine, on the evidence before it, the relevant customs of any group appearing or represented before it.
(2) In applying custom the Court shall have regard to any guidelines laid down in the regulations, and may modify custom to give effect to the guidelines.
LOCAL CUSTOM
4. The following are instances how land is acquired, and/or inherited in Lihir under its customary land tenure system:
(a).Land Acquired by Birth
5. Prior to going into the evidence we wish to mention from the start that Lihir is a matrilineal society, where land rights are vested in women and their off springs. Land passes on within the clan by birth. All customary land rights and any manner of disposal of land either by sale, transfer of ownership to another clan group or individual and/or in exchange for their land for another piece of land is totally at the prerogative and consent of all the clan members and not any individual member, even if you are the clan leader. A clan leader is only a custodian of all the land that is own by the clan, he cannot dispose off land to his children or any other person(s), unless the clan consents to such.
(b). Land Acquired by or After the Performance of a Customary Feast In Fulfillment of a Customary Obligation(s).
6. There are also instances where a person(s) or a clan may acquire land through the fulfillment of certain customary obligation(s) through the performance of customary funeral feastings, or play a part in a certain customary funeral feastings may qualify him or the clan to acquire land from the deceased person and his clan. According to Lihir custom a clan or a member of a clan may hosts the following category of feastings, ararum, papeke and tutunkanut in its preceding order.
7. According to Lihir custom any person or any clan wanting to acquire and inherit land belonging to a deceased person will have to perform all three categories of feastings in order to fully qualify him or the clan to claim customary ownership of the land. Such may occur when the deceased owner is the last surviving member of a certain clan. In the event that he dies his children or any other person closely associated to him may perform the above manner of feastings prior to and upon his death. Again the clan must give its absolute approval and recognition to such arrangement.
(c). Land acquired by the performance of Erkuetz (Hanging by the rope of the Wife of a Dying husband).
8. In this instance prior to colonization and Christianity in the event that a man dies his wife/widow will be hung in order that she’ll be buried together with her husband. Her own relatives will perform the hanging in order to cause her death. In return her husband’s clan members will give away to her clan members a portion of their land of their choice. The portion of land cannot be return to its original owners unless they perform Erkuetz. Land acquired by Erkuetz is never reclaimed.
(d). Land acquired by Payment of Cash, Shell money or in Kind.
9. There are instances where customary land is sold off to individuals or other clan groups by its original owners. The payment of cash or shell monies extinguishes their rights as to customary ownership to land. However the clan members must consent fully to such arrangement.
(e) Significant Land Marks
10. Generally, there are important landmarks, which the clan(s) may rely on in their claim for customary ownership over land that is any remnant of early settlement, ceremonial huts (haus boi), old/ancient trees and burial grounds/cemeteries, sacred sites (masalai), clan’s genealogy (family tree), and other physical evidence available to either party.
11. We bear in mind that about nearly 100% of all customary ownership to land on Lihir is not documented, but are in the mind and heart of the clan members as passed down from generation to generation. (Hearsay). Fortunately strict rules of evidence do not apply in Land Court proceedings.
12. In the matter before us both parties here were given a fair opportunity to prepare and present their case and called witnesses of their choice. The Court also had the opportunity to walk and inspect the boundaries with the assistance and under the directions of both parties. We also had the opportunity to have the Lihir Gold Limited Company Surveyor to plot the boundaries for the parties in which proper maps were drawn up for their purposes and our purposes as well, based on GPS readings. Both clans were given the opportunity to indicate their boundaries based on their local knowledge. This map will now be used to support our findings and held as future references for the parties.
EVIDENCE
NISSAL CLAN
13. The Nissal Clan called a total of four (4) witnesses, however the fourth witness namely, John Somi was disqualified as he was all the time present inside the court room during the proceedings despite the court’s advise in order for those people who were possible witnesses to vacate the room.
14. Firstly, in his opening remarks Mr. Simon Kombing the spokesman for the Nissal Clan told the court he hails from Kunaiye village, Lihir Island. He claims to be a member of the main Nissal Clan and sub-clan is Lala. He further claims to know the spokesman for the opposing party, namely Mr. Ambrose Silul of the Unawos Clan and his sub-clan is Wera. He identified Mr. Ambrose Silul to be from Malie Island, Lihir.
15. Mr. Kombing stated clearly that they are here in court over the dispute as to the customary ownership of Leputumlik Land. He clarified that the said Leputumlik Land is part of the land commonly known as Kul, which was handed down by the Tinetalgo Clan to the Nawol sub-clan. He stated such followed the promise by the elder of the Tinetalgo Clan namely Sangal following the death of his wife namely Puti.
16. He further claimed the lady Puti was the sister of Kombing from the Nawol sub- clan. He stated the reason the land was given away was because Puti was hung, as her husband asked that she be hung whenever he dies. He affirmed the reasons why the said land was given away or transferred to the Nawol sub- Clan was because of the above reasons.
17. Further still, he affirmed the said land belongs to the Tinetalgo Clan from the bush and not Tinetalgo Clan from the coast it was transferred to the Tinetalgo Clan and not Unawos as claim. He revealed after Puti’s death his brother namely Kombing did perform customary feasts over her body. However, when Kombing died his customary feast was left to the hand of Hugo Lap. He claimed Hugo Lap to be his elder and he comes from him.
18. Mr. Kombing claimed there were two people which resided on the said land namely Mis Tikial who resided on Anatzunho, whilst the other elder of Unawos clan namely Lap Tikian who resided at Leputumlik land. He claimed this two elders resided there upon the authority of an elder of the Nawol sub-Clan namely Kombing Tikian. He further claimed the elders above originate from Kunaiye village, namely Lisolik Hamlet.
19. He claimed, however because of their relationship the elders of the Nawol Sub –clan decided to put them there in order to look after the land. Mr. Kombing revealed the land the subject of the dispute has been taken to court on three different occasions, the decisions were in favor of Hugo Lap, the person he claims to be following in order to inherit the land.
20. He claims the decisions stand till today. He stated his father Hugo Lap pass away last year (2005). He claims during Hugo Lap’s death himself and his brother performed a customary feast over his death. He also said there were other people which assisted him during the customary feasting.
21. He claimed they had assisted him as they had claimed and owned some things which once belong to his father. He further claimed it was his father’s wish that he does not have an immediate uncle or sister so that he or she could assist him and his brother namely; John Somi in order to perform custom over his death. He stated their father did not want them to have a burden by feasting over him.
22. In addition, Kombing stated Hugo Lap did promise that everything which he owns would be inherited by him and his brother John Somi. He claimed according to his father’s genealogy their father was the 4th generation and the last man of the clan.
23. During cross examination by the spokesman for the Unawos clan on which clan does the Nawol Sub-Clan come directly under, he replied it comes under the Unawos Clan. Upon further examination in order to clarify the lady namely Puti which he referred to in his evidence, he stated the old lady Puti was from the Nawol Sub-clan.
24. Lastly, Kombing after being examined by the court on whether his father had clarified his intentions over the land prior to his death between him (Kombing) and his relatives, he replied yes he did but he did not tell him who his other relatives were, he was the last man of the clan.
25. In support of Kombing, Ms Monica Liale of Kunaye No.2 village claims to have known Simon Kombing as her grandson. She claimed to have recognized the spokesman of the Unawos clan; however she stated she does not know him that well. She further clarifies she comes from the Tinetalgo Clan and she understood why she is in court, its over the land Puti.
26. She claims the land belongs to the Tinetalgo Clan, she stated their elder Sangal was sick and about to die told them to kill his wife. They hung her and she died by the rope. She claimed she got the stories from her grandfather. She further claimed she got married and has plenty of children and grand children.
27. She stated the lady Puti was buried on the said land and she belongs to the Nawol sub- Clan. In addition she stated Hugo Lap lived there and they made custom over his death there.
28. Upon cross examination by the spokesman for the Unawos clan Mr. Ambrose Silul, from which clan does the Nawol Sub – Clan comes from, she replied saying she does not know which clan the Nawol Sub –clan comes from. Mr. Silul further asked who does Hugo Lap usually follow during the Kastam Wok/Tiniba and she replied there was no one else; he follows the Unawos Clans’ Tiniba.
29. Mr. Alois Pakanian of Kunaye No.1 village in his evidence stated Kombing is the owner of the land. He claimed the land belongs to his father and their father belongs to the Nawol clan. Upon examination he stated the Nawol Sub clan comes under the Masnawo clan. Upon examination by the Spokesman for the Unawos Clan as from which clan does Masnawo, Wera and Nawol come under and he replied Unawos Clan.
30. Lastly, Mr. Joe Aril’s of Pangoh village, but resides at Londolovit village and hails from the Hahut Clan. He claims to have known the piece of land the subject of the dispute, namely Leputumlik Land. He wanted three (3) particular points to clarify before the court which regards to the land the subject of the dispute.
31. Firstly, he wishes to tell the court how he is connected to the brothers is very clear. He stated the land does not belong to the clan. They (Kombing and John Somi) did custom over their father and that is how they acquired the land. He stated their father Hugo Lap was the last person of his Unawos Clan, he did not have any brothers or sisters and Unawos is the larger clan and the sub clan is Nawol Sub clan.
32. He claimed it was their father’s will or promise that they (Somi and Kombing) inherit the said land. In addition, he claimed according to his knowledge when their father Hugo Lap was still alive and whilst he used to visit them their father use to say that everything including the said land would go to his sons (Somi & Kombing) as there was nobody else except his sons.
UNAWOS CLAN
33. On the contrary, the spokesman of the Unawos Clan Mr. Ambrose Silul states he originates from Sinabiet village, Mali Island, Lihir Group. He claims he comes from the Wera Sub-clan whilst Unawos is the major clan group; Wera Sub-Clan comes under the Unawos Clan. Mr. Silul basically relied upon his affidavits which had filed with the Court.
34. Mr. Silul in his evidence clarified that all the land becomes a very important part of the livelihood of the people of Lihir. And he further stated Lihir is a matrilineal society where land rights are vested in the mother or woman and all land on Lihir is own by the clan.
35. He went on to say, however there are exceptional circumstances where one father may purchase land from another clan using his own monies. Since time immemorial the people have always uphold that the land rights are vested in the clan system. It means that each people or individual person from Lihir is member of a clan.
36. He further claims even the outsiders from other provinces like the Tolais, and Chimbus become members of a clan, on Lihir after they fully fulfil certain customary obligations of the Lihir people and the certain clan group, then they are qualified to attain full membership of the clan.
37. Mr.Silul stated when he said that all Lihirians are members of a certain clan it means that all members have automatic customary obligations that the clan members of the elder that had just passed away must perform some customary feasting over the elder. That is why on Lihir there is no destitute person or any loner. They are residing and living on land belonging to one particular clan.
38. Mr. Silul stated on this basis he wishes to put forward five (5) points in order to confirmed ownership of the portion of land namely LEPUTUMLIK under the land rights of Unawos clan. Where all the land surrounding this particular block of land do not have any dispute over them and its still owned by Unawos clan.
39. Firstly, the period of residency on the Leputumlik land. There were two people that settled on the said land namely, Ikomkom a male and his sister Puti. The beginning of that settlement was prior to the arrival of the first white man which settled at Londolovit area. The custom of the two elders whilst they settled on the said land, they performed customary feastings over the two elders at Linpulin hamlet belonging to the Unawos clan. The Linpulin Hamlet belongs to the Unawos clan rights.
40. The customary obligations performed as a sign and evidence of the transfer of rights to the next generation of members of the Unawos clan.
41. Secondly this then leads us to the next point which regards to the generations under Unawos clan and they are as follows;
Generation One
Generation Two
Generation Three
Generation Four
Generation Five
Generation Six
Generation Seven
Generation 8
Mr. Silul stated, the lady from generation four (4) namely Inin got married to Malie Island. She bore four (4) male children namely, Targoiluo, Pangas, Kalam and Tubutinalen. They migrated to Malie by marriage.
Generation 9
Generation 10
Generation 11
Generation 12
42. Mr.Silul stated the reason why he had referred to certain people as junior is because they retained the clan names from generation to generation. Mr. Silul further on said; thirdly he wishes to go down and reflect on the land marks they have on the land as evident of their settlements. Mr.Silul said according to Lihir custom under his third point above when people settled on or in an area there are land marks they have on the land indicating their settlements. He said on Leputumlik land they have land marks, there is a mango tree and other fruit trees belonging to Matzien Senior a member of his clan. There is also a breadfruit tree belonging to Totot Senior, a mango tree belonging to Lap Junior and there are gardens there on the land and there are boundaries indicating it. He emphasis that the fruit trees belongs to members of the Unawos Clan.
43. In addition, Mr. Silul stated the gardens belonged to the following individuals namely, Zikges, Gote, Totot, another belonged to Zikges, Gote, Pitikere of the Tinetalgo clan, Minonk, Tokmun of Tinalien clan, Lap and Tangir of Unawos clan.
44. Mr. Silul said, fourthly their elders are Kiah, Mis and Lap; the persons which performed the customary feastings over them are Tangir, Zeyal and their sister Lel. He further stated the following,
When Zeyal died Tangir performed customary feasting over him, when Lel died Tangir performed custom over her including Gote and Mis Junior, when Tangir died Gote, Bokua, Korezolzol, Totzik and Wes did performed customary feasting over him, when Zikges died Unawos clan members including his children came together and feasted over him, when Hugo Lap died Unawos clan members, including Somi and Kombing the sons of Lap feasted over him and there is a final feasting yet to be held as per the requirement by custom, when Abel Mis passed away the Unawos clan members including his children did performed custom over him.
45. Mr.Silul wishes to emphasis here again that as he has stated earlier Leputumlik land is a portion of land under the Unawos Land Rights. He further described that the Leputumlik land covers a large and wide area starting from the Landolam Bridge and extends as far as the area the subject of the dispute.
46. Mr.Silul revealed that as far as the public is aware there are some blocks of land inside the Unawos clan claimant, the clan is aware that they have distributed some portions of land to the children/offsprings of Unawos clan. He emphasis the children of Unawos which have been given land by the clan are, Clement Toiyen, Philip Pasap, Tangor, Toihile and including Kombing and Somi.
47. Mr. Silul further clarified that they are in court not against the Nissal Clan as is registered, however they are in court against the children (Somi and Kombing) of Unawos clan or referred to as their children or offsprings.
48. Upon cross-examination by Mr. Kombing on whether there was any prior disputes over the said land, Mr.Silul replied; when he mentioned that there weren’t any dispute, he wishes to separate the settlements into two (2) parts. Firstly the customary settlement and secondly the settlement which follows the Mining on Lihir Island.
49. He stated prior to the Mining Operations the area he referred to were gardening areas. This was after the settlement by Puti and Ikomkom; the settlement sprang up only a little while prior to the Mining Operations. After that there was a dispute only after the Mining Operations and economic development on the Island. He stated there was a mediation and they are in court today is yet to be decided. He further stated the dispute occurred after 1997.
50. Mr.Kombing on behalf of the Nissal Clan examined Mr. Silul why Hugo Lap had disputed Otto Zikges and replied, Hugo Lap and Zikges hail from the same clan, he further clarified for the purposes of public information the two gentlemen had personal grudges against each other as each one of them want to be the boss.
51. Mr.Kombing further queries Mr.Silul in that if the land belongs to Unawos Clan then there should be some significant land marks on the said land, such as a Haus boi or a cemetery. Mr. Silul replied as he had put it out earlier that Puti and her sister did performed custom on a Unawos Clan land at Linpulin Hamlet which is inside the vicinity of Leputumlik land. He stated that is why he would say that Monica the witness of the Nissal Clan had clarified the court that the land was transferred during a major feasting called ERKUETZ.
52. Mr. Silul added in Lihir during those early days as Monica the Nissal Clan witness has stated the land was transferred during the hanging of Puti a Unawos clan member. He stated the law of those days they would not take the life of another female as payback but would rather transfer land as a form of compensation for the death as in the case of Puti’s life for the Leputumlik land.
53. Moreover, Mr.Silul stated following Lihir customary practices the land was under the local term ERKUETZ, the transfer of land by ERKUETZ is permanent and cannot revert back to the original owners. The land can only go back to the original owners if they sacrifice the life of one of their daughters only then the land would return to them. However this practice is not possible today because of religion and the country’s laws have forbidden it.
54. Upon further examinations why he had included persons from other clans in his clan as everybody knows Puti hails from the Nawol clan and Ikomkom is from the Masnawo clan. Mr. Silul replied in their Unawos clan it is a secret of the clan, Masnawo, Nawol, Wera and Retz, these are sub-clans under the major Unawos clan. This evident by whenever an elder dies these sub-clans come together to perform custom.
55. He claimed a further confirmation of this is, in their haus boi/ceremonial hut today whenever there is distribution of food/tiniba these sub-clans they eat and feast under the major clan as in their case all feasts under the Unawos clan name.
56. He disagreed with Mr. Kombing’s statement that Hugo Lap their father did not have any brothers and sisters and Mr. Silul stated he affirmed his earlier statement that there is no destitute nor outcasts on Lihir everyone belongs to a clan. Mr. Silul claimed he referred to ERKUETZ and there is also another common practice in Lihir following the elders of the clan, referred to as AKANUTAYOMOK meaning that if the elder has a sickness/disease or is a thief and/or murderer, you will not escape as a member of the clan, you will have to slaughter a pig and partake in customary feasting. It is compulsory obligation according to Lihir custom and is a key element to transfer of ownership of wealth, land and other properties of the deceased elder.
57. Mr. Philip Pasap, the first witness for the Unawos clan, hails from the Tinalien clan and he claims to be an offspring of the Unawos clan. He stated his father is Otto Zikges of the Unawos clan. He claims to have been allocated a portion of land from the land the subject of this dispute. He clarified the other portion of land inside Leputumlik land were given to other elders namely, Pitik and Lumboe. This piece of land is under Siara and the other portion was given to Landi and Kindis, whilst the block of land further down was given to Clement Toiyen.
58. Mr. Pasap clarified Simon Kombing and his brother Somi were given a portion of land at Landolam by the Unawos Clan. He added those portions of land were allocated to them as children/offsprings of the Unawos Clan by the clan and they all know exactly which portion were allocated to them.
FINDING OF FACT
59. Firstly, the court is satisfied that Mr. Simon Kombing and his brother John Somi are members of the Nissal Clan and their sub- clan is Lala strictly by custom, whilst their father is by birth a member of the Nawol sub-clan and comes directly under the major clan group Unawos.
60. Secondly, the land the subject of the dispute was originally owned by the Tinetalgo Clan. However it was transferred to the Nawol Sub-Clan under the Unawos Clan following the hanging of the lady Puti as disclosed in the evidence of both parties. The customary term used for such transfer was Erkuetz. Further Puti was the wife of an elder of the Tinetalgo Clan namely Sangal.
61. In this instance prior to colonization and Christianity in the event that a man dies his wife/widow will be hung in order that she’ll be buried together with her husband. Her own relatives will perform the hanging in order to cause her death. In return her husband’s clan members will give away to her clan members a portion of their land of their choice. The portion of land cannot be return to its original owners unless they perform Erkuetz. Land acquired by Erkuetz is never reclaimed; such manner of transfer is permanent and/or irrevocable.
62. Thirdly, Hugo Lap is a member of the Unawos Clan and his Sub-Clan is Nawol, as affirmed by the witness Monica Liale. He feasts and partakes in the Unawos Clan’s tiniba or customary sharing of food during customary feastings.
63. The Leputumlik Land belongs to Simon Kombing’s father, Hugo Lap and his Clan following the transfer through Erkuitz by the Tinetalgo Clan following the hanging of Puti and not their mother’s clan, Nissal Clan as stated by their witness Alois Pakanian. He also confirmed in his evidence sub-clans, Masnawo, Wera and Nawol all come under the major clan group Unawos.
64. Ambrose Silul the spokesman for the Unawos Clan hails from the Unawos Clan whilst his Sub – Clan is Wera. Wera Sub- Clan comes directly under the major Clan group Unawos.
65. Lihir is a matrilineal Society where land is vested in women/mothers and their offsprings and more so in the Clan system.
66. The Court noted from the evidence there was an internal dispute between Otto Zikges and Hugo Lap who are members of the Unawos Clan over the said land prior to this dispute. Their dispute stem from the issue on who is to be the boss (out of prestige in nature), they had personal grudges against each other.
67. The only member of the Unawos Clan that is residing on Leputumlik land is Korezolzol. Korezolzol according to the genealogy which the Unawos clan are relying on is the son of Totot and the grandson of Pule. Pule bore the fifth generation whilst her daughter Totot bore the sixth generation in which Korezolzol is her sixth child out of six children.
68. The following sub-clans Masnawo, Nawol, Wera and Retz all come under the major clan group Unawos; whenever there are feastings they all come together and partake in customary feastings under Unawos.
69. Brothers Simon Kombing and John Somi have each been given a portion of land inside the Landolam area, i.e.; including Clement Toiyen, Kindis, Landi and Philip Pasap by the Unawos Clan as they are offsprings of the Unawos Clan. Their fathers hail from the Unawos Clan.
70. This dispute is not between the Nissal Clan and Unawos Clan but between the Children of Hugo Lap, that is Simon Kombing and John Somi and their father’s clan members of the Unawos Clan.
71. Although Simon Kombing claims that they inherited the land from their father as they have perform customary feasting over their father, Hugo Lap who was the last surviving person in the clan and it was his wishes his sons will inherit his land and properties, we find that if there was such then it was done without the approval and blessing of the Unawos clan membership.
72. Lastly the Leputulik Land boundaries the Bombel Golf Course and stretches over the Airport Road Easement and covering the area currently occupied by John Somi known as Linpulin hamlet.
DECLARATION OF OWNERSHIP
73. Based on the above finding of facts we declare that the customary ownership of the Leputumlik Land is vested in Mr. Ambrose Silul and his Unawos Clan.
REASONS
74. However, we unanimously agreed not to award customary ownership to the opposing party obviously because of the following reasons;
75. First and foremost Lihir is a matrilineal society, Simon Kombing including his brother John Somi strictly by Lihir custom cannot lay claim to their father’s clan land, unless there are some exceptions by their father’s clan members, in this instant there is none.
76. Secondly, although there is some claim by Kombing that because of the fact that they had partake in the customary feastings over their father it has given them every right to claim their father’s clan land. We find this to be misconceived, in Lihirian society or similarly any Papua New Guinean society any child spending his/her resources over his father’s funeral feast is an obligation that one cannot avoid, unless there is some undertaking by the deceased’s relatives that a certain portion of land will be awarded to the children by the clan as a token of appreciation for what they have done for their father, in this stance there is none.
77. Thirdly, the Land the subject of the dispute was transferred by Erkuetz as per the description above from the Tinetalgo clan to the Nawol Sub-Clan for the life of Puti under Unawos Clan. Now from what this court understands is that any land that is transferred under the local term Erkuetz to a particular clan is permanent, in the similar sense it cannot be transferred under any other circumstances to any other clan or persons. In the same instant Hugo Lap could not possibly make the Leputumlik Land as give away to his sons as the land continues to be held by the clan for the life of Puti. If there was such then there is no evidence to substantiate that the clan did consent to such.
ORDERS:
78. The Court enters the following orders;
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